One of the top cases of the current Supreme Court term is Wyeth v. Levine, asking whether a state law tort action challenging the labeling on a Wyeth drug is pre-empted by federal law. The Court heard the case last November, and presumably voted privately on how to decide it days later. But a decision has not yet emerged.
Now, the outcome of the case could be in question, because of the recent announcement by Pfizer Inc. that it would acquire Wyeth. Chief Justice John Roberts Jr. owns Pfizer stock that has prompted his recusal in previous cases. The outcome of the Levine case is likely to affect Wyeth's value, and in turn Pfizer's.
On Feb. 4, Wyeth's lawyer before the Court, Seth Waxman of Wilmer Cutler Pickering Hale and Dorr sent a letter to the clerk of the Supreme Court informing the Court of the pending transaction. But Waxman told the Court that because of pending stockholder approvals and other matters, the transaction will not be completed until July 31 at the earliest -- weeks after the end of the Court term, by which time its decision would have been released. As a result, Waxman said he does not believe the pending takeover "warrants amendment of the corporate disclosure statement" submitted by Wyeth when Wyeth petitioned the Court last year. That disclosure statement is ordinarily the way justices are informed about parent companies and subidiaries that lets them know if recusal is required.
Whether or not Waxman's letter makes a difference may not be known until the Court issues its opinion -- and either Roberts is part of the decision, or not. It is also conceivable Roberts could shed his Pfizer stock to avoid the recusal issue, a strategy some justices have employed in recent years. Either way, it will be an interesting test of whether news of an acquisition -- even before it occurs -- will affect justices' recusal practices. (Hat tip to Drug and Device Law blog.)
This article first appeared on The BLT: The Blog of Legal Times.
